Opinion
Nos. 20-107/108
06-25-2020
The PARK CENTRAL 1 LLC and E & M Lafayette Apts. LLC, Petitioner-Landlord-Appellant, v. Cheryl WILLIAMS, Respondent-Tenant, and Arthur Whaley, Respondent-Undertenant-Respondent, and John Doe and Jane Doe, Respondents-Undertenants.
Per Curiam.
Final judgment (Steven Weissman, J.), entered March 6, 2019, reversed, with $30 costs, undertenant's motion for summary judgment denied, petition reinstated and petitioner-landlord's cross motion to compel the deposition of respondent-tenant Cheryl Williams granted. Appeal from order (Steven Weissman, J.), dated February 4, 2019, dismissed, without costs, as subsumed in the appeal from the final judgment.
This holdover proceeding is not susceptible to summary dismissal, since respondent Arthur Whaley, the son of the tenant of record, failed in his burden to demonstrate the absence of triable issues with respect to his proffered succession defense (see Rent Stabilization Code [9 NYCRR] §§ 2523.5[b][1],[e] ). The evidence in the record shows that while the stabilized tenant executed a series of renewal leases extending her tenancy in the subject Bronx apartment through March 31, 2017, she was also the tenant (with her husband) of a Low Income Housing Tax Credit apartment in Lawrence, Massachusetts since 2011, pursuant to a lease that expressly required her to "live and use" the Massachusetts apartment as her "only place of residence." Tenant twice renewed the lease for the Massachusetts apartment solely in her own name following the death of her husband in 2015. Tenant was also admittedly absent from the New York apartment for "months at a time" between 2011-2015. Thus, on this record, triable issues are presented as to whether respondent resided with tenant in the subject apartment during the two-year period immediately preceding tenant's permanent vacatur (see Matter of Well Done Realty, LLC v. Epps , 177 AD3d 427 [2019] ; Third Lenox Terrace Assoc. v. Edwards , 91 AD3d 532, 533 [2012] ; see also Matter of Glass v. Glass , 29 AD3d 347, 349 [2006] [Rent Stabilization Code "requires simultaneous tenancy by the potential successor with the rent-stabilized tenant for the two years immediately prior to the tenant's permanent removal from the premises"] ).
As we have previously noted, "there is a split in authority between the Appellate Divisions of the First and Second Departments regarding when the ‘permanent vacating of the housing accommodation by the tenant occurs’ " ( West 48th Holdings LLC v. Herrera , 66 Misc 3d 150[A], 2020 NY Slip Op. 50284[U][App Term, 1st Dept 2020] [citations omitted] ). Contrary to the conclusion reached below, "[c]learly, we are bound by the law as promulgated in the Appellate Division, First Department, until the Court of Appeals makes a dispositive ruling on the issue" (id. ; see D'Alessandro v. Carro , 123 AD3d 1, 6 [2014] ).
Landlord demonstrated "ample need" (see New York Univ. v. Farkas , 121 Misc 2d 643, 647 [Civ Ct, NY County 1983] ) to depose the stabilized tenant, since it is clear that tenant possesses particular knowledge which could shed light on the occupancy issues raised in connection with her son's succession claim to the subject apartment (see 656 W. Realty, LLC v. Blanco , 32 Misc 3d 128[A], 2011 NY Slip Op. 51254[U] [App Term, 1st Dept 2011] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.